CBP to Require New, Far-Reaching Plant/Plant Product Import Declaration (Expected to Take Effect Dec 15th)

According to government officials, these provisions are expected to take effect on December 15, 2008.

New Plant/Plant Product Import Declaration Could Affect One-Third of HTS

U.S. Customs and Border Protection (CBP) has estimated that these provisions could affect one third of the Harmonized Tariff Schedule, including wood, cork, pulp, paper, certain apparel, umbrellas, furniture, games, toys, sporting equipment, etc.

(See today's ITT, 08081810, for BP summary of CBP's discussion of the potential impact of these Lacey Act amendments.)

New Definition of "Plant" Includes Plant Products, Etc.

As the Farm Bill amends 16 USC 3371(f) to replace the current definition of "plants" with a new definition that includes products of plants, parts, seeds, roots, etc., the import declaration requirement also applies to plant products. Specifically, the new definition states: "The terms 'plant' and 'plants' mean any wild member of the plant kingdom, including roots, seeds, parts, or products thereof, and including trees from either natural or planted forest stands."

Common Cultivars, Nursery-Type Plants Excluded from Definition

The terms 'plant' and 'plants' exclude: (1) common cultivars, except trees, and common food crops (including roots, seeds, parts, or products thereof); (2) a scientific specimen of plant genetic material (including roots, seeds, germplasm, parts, or products thereof) that is to be used only for laboratory or field research; and (3) any plant that is to remain planted or to be planted or replanted (such as nursery plants).

(However, exclusions (2) and (3) will not apply if the plant is listed in an appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); as an endangered or threatened species under the Endangered Species Act of 1973; or is threatened with extinction, etc.)

Plants and Plant Products Will Need Import Declaration with Species Name, Etc.

Effective 180 days from enactment (December 15, 2008), the Farm Bill amends 16 USC 3372 by adding a new paragraph (f), making it unlawful for a person to import any "plant" unless the person files a declaration upon importation that contains:

the scientific name of any plant contained in the importation (including the genus and species of the plant);

a description of the value of the importation and the quantity, including the unit of measure of the plant; and

the name of the country from which the plant was taken.

Packaging material. In addition, the plant and plant product declaration requirements of the 2008 Farm Bill do not apply to plants used exclusively as packaging material to support, protect, or carry another item, unless the packaging material itself is the item being imported.

Additional Information if Species/Country Unknown, Etc.

Under new 16 USC 3372(f)(2), until the Secretary of Agriculture (Secretary) conducts a review and promulgates a regulation (see below) which may modify the following requirements or limit them to specific plant products, a declaration relating to plant products must contain the:

(i) name of each species of plant that may have been used to produce the plant product if the species of plant used to produce the plant product that is the subject of the importation varies, and the species used to produce the plant product is unknown;

(ii) name of each country from which the plant may have been taken if the species of plant used to produce the plant product that is the subject of the importation is commonly taken from more than one country, and the country from which the plant was taken and used to produce the plant product is unknown; and

(iii) average percent recycled content without regard for the species or country of origin of the recycled plant product (in addition to the information for the non-recycled plant content otherwise required by 16 USC 3372(f)), for paper or paperboard plant products that include recycled plant product.

Review of Plant/Plant Product Declarations and Packaging Exclusion, Etc.

Not later than two years after enactment, the Secretary will be required to reviewthe implementation of the plant and plant product declaration requirements as well as the effect of the exclusion for certain packaging. In conducting the review, the Secretary shall provide public notice and an opportunity for comment.

Report. Not later than 180 days after the review is complete, the Secretary is required to submit a report to Congress evaluating the effectiveness of the plant/plant product declaration requirements in assisting enforcement, and the potential to harmonize each of these requirements with other applicable import regulations. In addition, the Secretary must include recommendations for appropriate legislation to assist in the identification of plants that are imported into the U.S. in violation of new 16 USC 3372(f); and an analysis of the effect of requiring plant declarations on the cost of legal plant imports, etc.

Possible rulemaking to limit declaration's scope, etc. Not later than 180 days after the date on which the Secretary completes the review, the Secretary may promulgate regulations to: (i) limit the applicability of any of the plant product declaration requirements to specific plant products and make any other necessary modifications based on the review; and (ii) limit the scope of the exclusion for certain packaging material if such limitations are warranted as a result of the review.

Definitions of "Taken" and "Taking," Prohibited Acts Expanded

Under 16 USC 3371(j), the amendments to the Lacey Act: (i) expand the definition of "taken" to also mean, with respect to a plant, harvested, cut, logged, or removed; and (ii) add a new definition for "taking" to mean the act by which fish, wildlife, or plants are taken.

In addition, the amendments expand the prohibited acts section under 16 USC 3372 to make it unlawful for any person to import, export, transport, etc. any plant "taken," possessed, transported, or sold in violation of any state or foreign law that protects plants, etc.

Violations. Failure to comply with the Lacey Act provisions can result in civil fines up to $10,000 for each violation and criminal prosecution.

(See ITT's Online Archives or 05/19/08 news, 08051905, for previous BP summary of the Farm Bill.)

H.R. 6124 (P.L. 110-246 is not yet available) available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h6124enr.txt.pdf